Short answer
Information is a trade secret under Directive (EU) 2016/943 only if it is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret. Calling a document “confidential” is relevant evidence, but is not enough by itself.
An employee may take general experience and skills honestly acquired in the normal course of work, and information that is not secret. The employee may not copy or use qualifying secrets in breach of confidence or another duty. Employment contracts, access controls, exit procedures and evidence connecting the employee to particular information matter more than a sweeping claim over everything learned at work.
Courts must preserve confidentiality during trade-secret litigation while protecting fair-trial rights. They can restrict access to documents, hearings and judgments to a limited group, but cannot ordinarily exclude every person from a party. Regulators may compel confidential information where legislation gives them power; the trade-secret right is not a privilege against lawful disclosure. Agency secrecy and public-access rules govern what happens next.
Whistleblowers can be protected when disclosure is necessary to reveal misconduct, wrongdoing or illegal activity and serves the public interest, or when the EU Whistleblower Directive's conditions are met. The label “whistleblower” does not protect disclosure of unrelated secrets or public disclosure made outside the applicable conditions.
The information must first qualify as a trade secret
Directive 2016/943 protects information meeting all three elements:
- it is not generally known or readily accessible among people who normally deal with that kind of information;
- it has actual or potential commercial value because it is secret; and
- the person controlling it has taken reasonable steps to keep it secret.
A trade secret must be subject to “reasonable steps” to keep it secret. —
Source code, formulas, manufacturing methods, pricing models, customer strategies, negative research results and commercial plans can qualify. Public facts, routine professional knowledge and information easily reconstructed from marketed products usually do not.
Reasonable steps are proportionate to the information and business. Useful evidence includes a secret inventory, access permissions, encryption, logging, confidentiality clauses, supplier controls, markings, clean-room rules, staff training and incident response. If a company gives an unrestricted shared drive to everyone and never identifies sensitive material, it may struggle to prove the third element.
What employees may take to a new job
The Directive does not create an ownership right over an employee's mind or a general non-compete. Article 1(3) preserves worker mobility and says trade-secret protection must not be used to limit:
- information that is not a trade secret;
- experience and skills honestly acquired in the normal course of employment; or
- employee restrictions beyond those permitted by EU or national law.
Acquisition, use or disclosure becomes unlawful where the employee acts without consent and knew, or should have known, that the conduct involved unauthorised access, copying or breach of a confidentiality or use restriction. Taking a customer export, design file or laboratory notebook is different from applying accumulated judgment and skill.
An employer preparing for a departure should preserve logs, identify the exact secrets at risk, revoke access proportionately, collect devices and remind the employee of continuing duties. It should avoid asserting ownership of every contact or idea. A new employer should instruct recruits not to bring former-employer files, segregate suspicious material and document independent development.
National law remains important for non-competes, employee inventions, works created in employment, fiduciary duties and procedure. A valid confidentiality clause strengthens notice and contract claims but cannot convert public or general knowledge into a trade secret.
Lawful discovery and reverse engineering
Independent discovery and creation are lawful. Observation, study, disassembly or testing of a product made available to the public, or lawfully possessed by the acquirer, is also lawful where the acquirer has no valid duty limiting it. This protects genuine reverse engineering.
A contract may restrict reverse engineering in circumstances allowed by applicable law. Separately, patent, copyright, database, cybersecurity and computer-access rules may apply. Trade-secret law therefore does not answer every question about obtaining technical information.
Keeping secrets confidential during litigation
Ordinary litigation can destroy the value at issue if pleadings, evidence or hearings reveal the secret. Article 9 requires Member States to let courts impose confidentiality measures, including:
- limiting access to documents containing secrets;
- restricting attendance at hearings and access to transcripts;
- producing non-confidential versions of decisions; and
- continuing confidentiality duties after the proceedings end.
The restricted circle must be no larger than necessary, but must include at least one natural person from each party and the parties' lawyers or representatives. Measures must preserve effective remedy, a fair trial and judicial independence.
Applications should identify the secret with enough precision for the court and opponent to understand the case, explain the harm from disclosure, and propose tiered measures. Merely stamping the entire file confidential invites challenge.
In Varec, C-450/06, the Court held in a procurement-review dispute that the review body must safeguard confidential information and trade secrets and may decide that information should not be disclosed to the parties or their lawyers. The body must balance confidentiality with the information needed for effective review.
In Antea Polska, C-54/21, the Court rejected a practice under which tenderers could classify almost all information as confidential without concrete justification. Where full disclosure is refused, the contracting authority must, so far as possible, provide the essential content in a neutral form and give reasons sufficient for effective review.
Those cases concern procurement, but illustrate the recurring balance: confidentiality is protected, not presumed without examination.
When a regulator demands information
The Trade Secrets Directive does not affect EU or national rules requiring a holder to disclose information to public authorities or giving authorities investigatory powers. Compliance with a lawful order is not automatically unlawful disclosure. Refusing solely because material is a trade secret can lead to enforcement consequences.
The holder should nevertheless:
- confirm the authority's statutory power and the request's scope;
- identify particular confidential passages and current commercial harm;
- use the agency's confidentiality form and submit a reasoned public version where required;
- mark data consistently and use secure transfer channels;
- record third-party confidentiality obligations; and
- seek timely review if confidentiality is rejected.
Regulators are governed by their own professional-secrecy, sector and access-to-documents rules. Some information must later be disclosed for transparency, environmental information, defence rights or judicial review. Trade-secret status is an interest to protect and balance, not an assurance of permanent secrecy.
In Baumeister, C-15/16, the Court held that information in a financial supervisor's file is not automatically confidential. Authorities must assess whether information is secret and whether disclosure could adversely affect the interests protected by supervisory confidentiality. The age and continuing commercial sensitivity of information can matter.
Whistleblowing and public-interest disclosure
Article 5 of Directive 2016/943 requires dismissal of a trade-secret claim where acquisition, use or disclosure occurred for revealing misconduct, wrongdoing or illegal activity and the respondent acted to protect the general public interest. Freedom of expression and information, including media freedom, is also protected.
Directive (EU) 2019/1937 adds a structured regime for reports of specified breaches of EU law in a work-related context. A reporting person generally needs reasonable grounds to believe the information was true and within scope, and must report internally, externally or publicly under the directive's conditions.
“Reporting persons shall not incur liability in respect of the acquisition of or access to the information which is reported or publicly disclosed” —
That acquisition-or-access protection does not cover a self-standing criminal offence. Separately, liability protection for the report or public disclosure requires reasonable grounds to believe the disclosure was necessary to reveal a covered breach. Public disclosure has additional conditions: for example, no appropriate response after reporting, an imminent or manifest danger to the public interest, or a serious risk of retaliation or concealment. National law may protect a wider range of wrongdoing.
An organisation should therefore separate the alleged misconduct from any excessive disclosure. It should preserve the reporter's confidentiality, investigate without retaliation, and avoid using a trade-secret claim merely to identify or silence a protected source. A reporter should disclose no more secret material than reasonably necessary and use protected channels where available.
Remedies and proportionality
Courts can order provisional measures, cessation of use, delivery up or destruction of infringing goods and documents, damages and publication of decisions. They must assess proportionality, including the secret's value, protection steps, conduct, impact, third-party interests and public interest. An innocent acquirer may in some circumstances pay compensation instead of facing an injunction.
The Directive leaves limitation periods to Member States, subject to a maximum of six years, and national implementation governs procedure and sanctions. Speed matters: delay can undermine urgency, allow wider dissemination and weaken an application for interim relief.
Conclusion
Trade-secret protection travels with evidence and context. Employers must distinguish portable skill from controlled secret material. Courts can create confidentiality rings without eliminating adversarial fairness. Regulators can compel information but must apply the confidentiality rules governing their mandate. Whistleblowers are protected for necessary, public-interest reporting—not for unrelated commercial disclosure.
The strongest protection is built before a dispute: identify the secret, restrict and log access, document commercial value, set lawful reporting channels and prepare disclosure protocols for courts and authorities.
Sources
This article provides general legal information, not advice for a specific matter. Laws, facts and procedural deadlines may change the result. Follow the linked primary sources and obtain local advice before acting.